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Montoya v. Mentor Corp.5/29/1996
e target of congressional attempts to promote the introduction of safe medical devices onto the market or even to curb dual regulation of the medical devices industry." 67 F.3d at 1459. In fact, "the state law tort system currently acts as an incentive for manufacturers to continue to improve their products as well as to disclose developments in product safety and their side effects." Bravman v. Baxter Healthcare Corp., 842 F. Supp. 747, 760 (S.D.N.Y. 1994).
{31} We find it difficult to accept that Congress, concerned with the safety of medical devices, would take away the sole means of redress for injuries caused by those devices. The result of determining federal preemption of all state common law tort claims for Class III devices would be to leave an injured party with no remedy whatsoever, and, ironically, with less protection than they enjoyed before passage of the MDA. Such could not have been the intent of Congress in an area where that legislative body has sought to protect the consumer. There simply must be some avenue for redress, and the MDA does not provide it. "The legislation is written so that the benefit of the doubt is always given to the consumer. After all it is the consumer who pays with his health and his life for medical device malfunctions." 121 Cong. Rec. S10688 (daily ed. Apr. 17, 1975) (statement of Sen. Kennedy).
{32} In this context, Plaintiffs' counsel's reference at oral argument to Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60 (1803), was most appropriate. In that legendary case, Chief Justice Marshall, speaking for the Court, posed the crucial question: "If [a person] has a right, and that right violated, do the laws of [this] country afford him a remedy?" Id. at 162. The Supreme Court's answer, which we adopt in reaching our holding, was that "the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury ." Id. at 163.
III. CONCLUSION
{33} Based on our review of the language and the context of the MDA, its legislative history, and FDA regulations, we hold that Congress has not expressed an intent to preempt all state common law causes of action arising from injuries resulting from the use of a Class III medical device. We therefore reverse the award of summary judgment to Defendant and remand for trial. Plaintiffs are awarded costs on appeal.
{34} IT IS SO ORDERED.
RUDY S. APODACA, Chief Judge
WE CONCUR:
BENNY E. FLORES, Judge
RICHARD C. BOSSON, Judge
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